Thousands of Tennesseans are finding out their expunged records were never sealed and are showing up on employment background checks. Here’s what do if this happens to you.
Imagine applying for a job, consenting to a background check, and then being shocked to discover a crime you never committed showed up in your results. You probably wouldn’t get the job and your reputation would suffer serious consequences. That’s the unfortunate scenario at least 23,000 people in Tennessee could find themselves in because of a massive backlog in the orders for expunged records.
The Chattanooga Times Free Press is reporting that the city’s police department is working its way through the requests, but defense attorneys are claiming that leaves too much time for irreparable damage to be done to job candidates. That’s because in most cases the employer automatically disqualifies the applicant before she/he has gone through the process to have her/his background check results corrected and re-verified. The Fair Credit Reporting Act requires the employer to provide a summary of rights to the applicant and the screening company is generally given 30 days to reinvestigate any disputes.
What is an Expunged Record?
An expunged criminal record is a file of an arrest or a criminal conviction that has been sealed and erased. Laws governing this process vary by state, but in Tennessee where is the issue is grabbing headlines, people with dismissed cases are eligible to have their record expunged. The Chattanooga Times Free Press reports the court deletes the record from its system after a judge signs the expungement order and then sends that order to the Tennessee Bureau of Investigation and the arresting agency to have those expunged records deleted.
Why is there a backlog?
Backlogs can exist for a variety of reasons. In Chattanooga’s case, a police department spokesperson reportedly told the newspaper that the backlog began with a previous administration and has continued due to staff shortages.
HG.org, a renowned law information site, offers this reasoning as well:
“In many states, it is the individual’s responsibility to submit a copy of the expungement order to these entities along with a request that they update their records accordingly. Individuals or their attorneys may need to disseminate proof of the expungement to other courts, prosecuting attorney offices, the department of motor vehicles, family services agencies, and so forth.
Convincing an agency to honor an expungement order can raise issues of jurisdiction and comity. For example, the record of a state felony conviction may appear in the FBI database, to be found by employers or others conducting a background check. After expunging such a conviction, a copy of the court order instructing that all records must be destroyed should therefore be sent to the FBI. However, because the FBI is a federal agency, it is not bound to follow an order issued by a state court. To resolve issues like this, it is wise to hire an attorney not only to obtain the expungement order, but also to make sure the order is distributed to, and recognized by, the appropriate agencies.”
How does it affect job prospects?
Obviously, a background check that’s returned with a red flag for a criminal conviction could drastically reduce a candidate’s chance of landing a job. The issue could be compounded further if the candidate was asked about any previous convictions on an application (many state are adopting Ban the Box laws to address this issue) or during an interview and is now seen as a liar. Ex-cons already have a tough enough time finding work. People with records who are supposed to be expunged but show up in a background check will find themselves in the same boat.
Is this a recurring problem?
Just a year ago we told you about a Wall Street Journal investigation that uncovered the real reason why people with records that were supposedly expunged were scrambling to clear their names. It’s laziness on the part of Consumer Reporting Agencies (CRAs) who weren’t performing due diligence verifying background check results.
Here’s the deal. CRAs get their information from a variety of sources like courts, creditors, law enforcement, driving records, corrections. It’s then up to the screening agencies to spend the time, money and manpower verifying these results. The bigger the company, the less likely they are to have boots-on-the-ground talent going into courts, double-checking driving records, or calling creditors and references back to make sure the initial information is correct. The problem with expunged records comes into play when this re-verification process gets ignored. That’s because most states don’t provide a notice that a record has been expunged. If a big name CRA fails to have a qualified researcher double-check these results, errors, and eventually, lawsuits occur.
Some CRAs will claim that the bulk of the responsibility for correct information lies with the courthouse and the state, but at Active Screening we think it’s just as critical that the CRA takes a vested interest in verifying results before reporting them.
Why Active Screening is different
That simply doesn’t happen at Active Screening. We NEVER hesitate to send our expert team of researchers into the field – be it a courthouse or state agency – to verify results. We perform 80% of our background check research in-house – that means we have a dedicated and trained staff who collaborate together to gather information about candidates. We DO NOT outsource our duties and risk erroneous information creeping into our results. Our Active Screening team understands that the most up-to-date information is gathered in the field, and that’s why we head straight to the source where the info originated. There is no laziness among Active Screening researchers and our customer testimonials prove it.
It’s one of the many benefits you get with working with an independent, boutique agency run by some of the sharpest minds in the industry. Our leaders are on the cutting edge of screening trends and have developed a corporate culture and operating procedure that demands excellence while maintaining the highest standards of compliance, including the re-verification of criminal records so accidents with expunged information do not happen.
If someone you know has a record that’s supposed to be expunged, please send them this important blog post so they can double-check that it really has been sealed. There are steps a person can take to ensure his/her record is sealed. Email one of our team members here to get started.
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